Mirkarimi’s Boo-Boo

Tonight the Ethics Commission will begin deciding what rules will apply in its consideration of Mayor Lee’s suspension and removal of Sheriff Ross Mirkarimi, an official who won his office last November with thousands more votes than did Lee himself.

The case itself will continue to be argued through the summer with a Board vote unlikely before sometime in late September or early October, scant weeks before the November election when progressive incumbents face voters.

The mayor released his proposed schedule on Friday, May 25, showing the case being presented to the Ethics Commission through August 17, with the Board on recess until September 1 and then having 30 days to consider the record.

Coming 30 days before the November elections, the timing of the schedule has caused many political observers to wonder if this is a schedule based on Ethics’ requirements or on a political one to intimidate the Supervisors running for reelection.

The Tuesday, May 29 Ethics Hearing also will weigh who, if anyone, to hear in live testimony before the Commission.

So far the mayor has formally objected to one witness on behalf of Sheriff Mirkarimi, asking that former Mayor Art Agnos not be permitted to testify about his conversation with Mayor Lee regarding filing a suspension.

Mayor Lee has submitted a list of 24 “fact” and “expert” witnesses but declines to publicly disclose the cost for a list twice as long as the Twelve Apostles. Most legal observers peg the cost of bringing in an expert witness at about $300 an hour for preparation and upwards of $1,500 an hour for actual testifying.

In addition, one can anticipate the costs of transportation and other expenses for witnesses the Mayor lists from San Diego and Los Angeles.

In all, the Mayor’s witnesses could put the city on the hook for tens of thousands of dollars in fees and expenses.

The Mayor’s Witnesses for the Prosecution

Lee relies in part on witnesses from law enforcement who have strong organizational credentials.

He lists San Diego’s Police Chief, William Landsdowne, as an expert witness.

As it happens, Landsdowne is currently a defendant in a lawsuit charging that he did not do enough to prevent police misconduct. Landsdowne himself admits to an “unprecedented spike” in misconduct cases, now totaling 11 cases, including an officer alleged to have solicited sexual bribes in five cases. The remaining cases include domestic violence and felony drunk driving.

In January, hundreds of San Diego citizens signed petitions calling for Landsdowne to resign after what was reported to be a peaceful Occupy protects ending in police macing and beating protestors.

Mayor Lee also seeks to place on the witness stand Santa Clara County Sheriff Laurie Smith, the highest-ranking female sheriff in California albeit not the highest paid female sheriff. That distinction goes to San Francisco’s interim sheriff with a current salary of $179,000 combined with her pension totaling in the vicinity of $300,000 a year.

In 2011, Smith was the focus of an investigation by the San Jose Mercury into the handling of gun permits. While the number of permits issued dropped under Smith, those that were issued strongly favored Smith’s political contributors, according to the paper’s report. Rules that require permit holders to be local residents appear to have been ignored with several out-of-state applicants given permits, including one person who lives in Moscow, Russia. Smith denied that there was any connection between the permits and political contributions.

Smith also hit a rough spot when she decided to demote rather than fire a sheriff’s deputy driving a patrol car who crossed the double-yellow line to drive into a group of cyclists on a training ride, killing two riders. The deputy pled guilty to two misdemeanor charges of vehicular manslaughter but retained his employment under Sheriff Smith.

Lee also lists as a witness Elizabeth Aguilar Tarchi, the Assistant District Attorney who is Managing Attorney for the Domestic Violence Unit. This could open the door to questions about Aguilar Tarchi’s supervisor, Sharon Woo, the chief Deputy District Attorney for Operations.

Woo, who oversees all criminal cases and is the direct supervisor over the Domestic Violence Managing Attorney, was reported by the Wall Street Journal to be an investor in Ivory Madison’s business ventures. Madison, the Mirkarimi’s neighbor who persuaded Eliana Lopez to make a 50-second video displaying a bruise, called police about a domestic violence incident with the Mirkarimi’s but declined to release the video without a search warrant. The District Attorney’s office told the Journal that Woo recused herself in this case but it is unstated whether she had an initial role in being consulted or approving the search warrant of Madison’s home for the tape of Eliana Lopez.

It is also unknown and the DA will not comment whether Woo had a role in crafting the DA’s terms for Mirkarimi’s plea agreement that included an unprecedented apology to Ivory Madison, whose reputation is the basis for any worth in Woo’s investment.

It also is unknown and the DA will not disclose whether Woo, now that the prosecution is complete, is playing a role in the District Attorney’s continued opposition to allowing Mirkarimi and his wife to talk to each other, even through Skype. The DA’s opposition came days after KGO’s Dan Noyes broadcast an interview in which Lopez questioned Madison’s role.

The District Attorney’s office declined to answer further questions about Woo, saying the issue already had been covered in the media.

The DA’s role was further clouded when District Attorney George Gascon’s wife agreed to participate in a fundraiser to help pay for a billboard that targets Mirkarimi.

Atmospherics Drive by Media

How much resonance this will have with the public will depend to some extent on the amount and detail in the major media. So far they have had little appetite for delving behind the claims of the District Attorney.

It’s not because the media has devoted too little attention to the Mirkarimi situation. In the first sixty days of the Mirkarimi case emerging publicly, the Chronicle ran 98 news stories, gossip column items, editorials and other materials. The Examiner ran 55 stories and editorials and gossip columns in the same period, and the SFAppeal and BayCitizen each ran just under 20 stories.

The Chronicle, which led the coverage, never mentioned the District Attorney’s conflicts, never covered Mirkarimi’s longtime romantic partner’s claim that Ross was never violent, never covered the District Attorney’s failure to pursue nearly 1,000 domestic violence referrals in the past year, and never covered other issues such as the potential lack of impartiality on the part of the judge hearing the case.

Unsurprisingly, the paper backed its coverage by rushing out a poll with an unknown client and with no reporting on the questions to say that public opinion has turned sharply against Mirkarimi.

The Mayor on the Stand

The Ethics Commission’s major focus will be on Mayor Ed Lee should he hold to his earlier statement that he intends to testify live and in person in front of the Ethics Commission.

Lee’s attorneys earlier sought to sidetrack any issues relating to how the City, and in particular Ed Lee, handled other cases that raise questions of misconduct of a serious nature.

When Mirkarimi’s lawyers entered their brief, they attached only two exhibits. Both were the unedited versions of a City Attorney investigation into allegations of misuse of city funds and, in one case, interfering with the voting rights of city contractor employees.

Mirkarimi’s attorneys submitted the City Attorney’s investigation into issues surrounding Ruby Rippey-Tourk and Alex Tourk after then-mayor Newsom admitted having an affair with his appointments secretary.

Questions had been raised about whether Ruby Rippey-Tourk had wrongfully be paid for time not worked and whether she had been wrongfully allowed to participate in the city’s catastrophic leave program intended to assist those in the final stages of a fatal disease. Alex Tourk, who was deputy chief of staff as well as the husband of Ruby Rippey-Tourk, at some points was her supervisor and approved her leave or else approved her own self-certification.

The relevance to the Mirkarimi case, beyond whether there were grounds for disciplinary action, was that both Ruby Rippey-Tourk and Alex Tourk, through attorneys, declined to cooperate with the City Attorney’s investigation.

Unlike Mirkarimi, who has been warned that his failure to cooperate into the investigation into his actions would result in a new charge of Official Misconduct, neither of the two Newsom staffers was compelled to cooperate or faced sanctions for failing to do so.

The second exhibit raises some of the same suggestions that Mirkarimi is being treated to a different standard than other city officials, but it also ties it directly to Mayor Ed Lee.

A 2004 City Attorney investigation into illegal campaign activities documented that Mohammed Nuru, then the deputy Director of the Department of Public Works, had been a lead figure in cajoling and even coercing city contractor employees into political activities in the 1998, 1999 and 2003 elections. The investigation was headed by lead City Attorney investigator George Cothran, also the lead investigator into this year’s Mirkarimi inquiry.

As in the case of the Tourks, Nuru also refused to cooperate with the City Attorney’s investigation. As in the other case, Nuru was not compelled to cooperate into the investigation into alleged illegal and corrupt activities.

The investigation record was turned over to Nuru’s supervisor to decide what action would be in the city’s interest. That person was Ed Lee, then the City Administrator. Lee took no disciplinary action.

Nuru has figured in other controversies, including a lawsuit against him for racial and sex discrimination following his dismissal of the EEO officer assigned to monitor his office. Among the issues in that case was an allegation that Nuru had protected an official who routinely over a period of decades sexually harassed women he supervised.

Nuru brought the decision to fire the EEO officer to Lee, according to court documents, where one issue was whether the firing would be retaliatory. Lee, the court record states, confirmed the decision to fire the EEO officer.

In January 2011, now as interim mayor, Lee signed a $105,000 settlement award to the fired employee in order to have the lawsuit dropped. The settlement never made the newspapers at the time. The attorney for the former employee was Waukegan McCoy, who had once served on the city’s Ethics Commission. In August, seven months after signing the settlement, Lee promoted Nuru to be the Director of the Department of Public Works.

The current Ethics Commission also has found Lee reluctant to act on a disciplinary case that it referred to him involving Official Misconduct. Last summer, the Ethics Commission determined that Library Commission president Jewell Gomez violated the city’s Sunshine Ordinance and that the mayor should consider her removal.

The Commission’s letter to the mayor never was acknowledged. Earlier this year, the Commission asked that the mayor again be contacted to determine what, if any, action he was taking on their recommendation that Gomez be removed or sanctioned.

Lee’s office says only that one of Lee’s staffers called Gomez and urged her to obey the law.

The City Attorney explains that he took no action to bring charges of Official Misconduct in any of these cases, and did not seek to compel the cooperation of the Tourks or Nuru, because he says the city charter does not provide him with that authority.

Only an investigation at the request of the mayor, according to the city attorney, includes the ability to compel cooperation.

Further, only the mayor and not the City Attorney or the Board or other officials can bring a charge of Official Misconduct and that, even then, the mayor alone can not be charged with Official Misconduct himself.

To others, this is a distinction with no difference and only underscores that the mayor plays by his or her own rules that don’t apply to anyone else.

A Trail of Different Tales

Getting to the point of an Official Misconduct hearing at Ethics has taken any number of twists and turns, despite the media’s narrative of events moving on a superhighway of facts and evidence.

Ivory Madison, the Mirkarimi neighbor who called the police and turned over a 50-second video, is a case in point.

Eliana Lopez, Mirkarimi’s wife, says that it was Madison’s idea, not hers, to make a video of Eliana’s emotional upset over an argument with Ross Mirkarimi that ended with him grabbing her arm and leaving a bruise.

Madison has not denied that the video was at her instigation, but she has denied that she was providing legal assistance. However, even Madison’s own account is that the video was intended to serve a private legal option and that it would be a confidential document under Eliana’s control, held by Madison as a further assurance that it remained confidential from Ross.

Madison has promoted herself as a graduate of a law school, a former intern at the California Supreme Court, and holding a legal position with a national nonprofit. On her own web-site, she describes herself as a “non-practicing lawyer,” which falls somewhat short of stating that she failed the bar and is not admitted to practice. It is like stating she is a “non-practicing doctor” for someone never admitted to practice medicine.

A Bay Citizen feature on Madison reports that Madison was quick to make claims of sex discrimination. As a staffer on her Law Schools journal, she blue-penciled a passage in an article submitted for publication that mentioned reading Playboy while on a public bus. Madison argued that the passage was offensive.

When her decision was overruled, she filed a grievance with the school claiming that the decision to reverse her was a form of sexual harassment. The school disagreed. Madison also is an author who created a comic book heroine, The Huntress, billed as a vigilante with a crossbow who kills evildoers without remorse.

The police, having been alerted by Madison of a potential domestic violence incident, took a report, gathered the video and sent it off to the District Attorney.

At the District Attorney’s office, the report was one of hundreds that office receives. In 2011, the District Attorney’s office reported receiving 1,790 new cases. Fewer than 500 were charged as misdemeanors or felonies, with about another 150 discharges to probation or parole.

That left over 1,100 out of about 1,800 cases with no further action in 2011.

In 2012, the record appears to be about the same.

Two weeks after Mirkarimi was charged, a Gascon assistant district attorney was arrested on domestic violence charges and posted a $10,000 bail. Because she worked in the office – as had Mirkarimi earlier – her case was referred to Kamala Harris, now the Attorney General and the accused former boss. Harris declined to press the charges and the assistant DA is now back at work in the District Attorney’s office.

Despite a fairly vigorous contest for the election of the District Attorney last year, and a politically savvy and active corps of domestic violence advocates, this record received no attention in questions posed to the candidates. One possible explanation is that several of the organizations working to assist victims of domestic violence receive assistance in the form of contracts or office space from the District Attorney.

In the Mirkarimi case, it took just one week before the DA filed charges. The day before charges were filed, some advocates on behalf of domestic violence victims already had called on Mirkarimi to take a leave of absence.

The Courtroom

Judge Susan Breall then entered the picture, presiding over the hearing and concluding with a stay-away order that prevented Mirkarimi from seeing or talking to his wife or son.

Some would say that the script already was written when Presiding Judge Katherine Feinstein notified Mirkarimi that she was withdrawing from her commitment to swear him into the Sheriff’s office out of concern that he might yet appear in her court.

Breall once headed the District Attorney’s Domestic Violence Unit and has maintained a strong relationship with groups advocating on behalf of domestic violence victims.

During the course of the proceedings, it was never reported that Breall is a member of the Board of Directors of Asista, a nonprofit organization designed to assist attorneys representing immigrant women who are victims of domestic violence. Her involvement with a group assisting attorneys in cases like the one before her with Mirkarimi was a matter of public interest with the potential to raise issues of prejudice from the bench.

That issue was underscored by Judge Breall’s handling of the case in the courtroom. She injected Eliana’s immigrant status into the proceedings, although that was not part of any court proceedings and was strongly opposed by Eliana herself. Breall tried to backtrack from the bench, saying she considered Eliana to lack the support network that longtime residents might have. This was a remarkable statement from a judge who sits on a Board intended to assure the rights of immigrant women.

Breall further compounded this issue by referring to Eliana by name, when the law requires that any victim have their identifies protected. Breall responded to that by saying from now on she would refer to her as “Eliana L” but otherwise mocked the issue by noting that her name already had been in the newspapers.

Breall frequently stated to Mirkarimi’s attorneys during the proceedings that this case would be handled like all other cases, sarcastically suggesting the she was certain that would be what Mirkarimi would want.

Apparently Breall had temporarily forgotten that she sits on the bench with Judge James McBride, charged in 1999 with felony spousal abuse and three misdemeanor counts of battery and domestic violence while serving as a judge.

In a San Francisco Weekly article by then-reporter George Cothran, now the investigator in Mirkarimi’s trial, Cothran sized up the situation.

“Legally, the situation is dicey, a real wobbler,” wrote Cothran. “As best as I can tell, Elaine McBride was not seriously injured. The only wounds she sustained were a bruise to the hand and one on her chest.”

“It seems to be a rather thin case of domestic violence, the kind of thing that happens every day in the city between contentious couples,” wrote Cothran.

Before long, McBride was given a plea deal to drop all the charges of domestic violence in favor of a single charge of intimidating a witness, with that charge struck from the record after a year of counseling.

The factors considered were “concerns by the victim, welfare of the family and the status of the marriage,” according to a San Francisco Chronicle article at the time.

Mirkarimi’s Political Opponents Fund Effort

It was just such a disconnect between the policies espoused by Breall, Gascon and others that led directly to the suspicion that politics had taken over.

A leader in this effort was a backer of Mirkarimi’s leading opponent in the sheriff’s race. Andrea Shorter was a Chris Cunnie contributor and also had notably kept silent about a felony domestic violence arrest of a colleague on the Alice Toklas Board of Directors who was nominated for a spot on the Police Commission.

In a Huffington post piece. Shorter warned that unless Mirkarimi is forced from office, the city risks “a return to the bad old days of double-digit murders of women victims of domestic violence.”

Early in February, advocates announced that they were putting up a billboard playing off of Mirkarimi’s comment that the dispute with his wife was about a private matter. Re-interrupting that remark to conclude that Mirkarimi was referring to domestic violence, the billboard proclaimed “Domestic Violence is Never a Private Matter.”

By March, five more billboards had gone up, all in districts represented by supervisors more likely to be supportive of Mirkarimi. At least ten of the contributors were political contributors to Mirkarimi’s opponent. Among them was one of the senior campaign aides to Chris Cunnie, a leading candidate for sheriff defeated by Mirkarimi.

Ironically, the billboards may be a violation of the law passed by voters that prohibits new billboards. That law is being tweaked as a result of what Chronicle editorial writers call “timid lawyering,” to allow an actual proliferation of billboards, resulting in a suit filed by San Francisco Beautiful.

In a last irony, as the Ethics Commission prepares for its hearing, John St. Croix, its executive director, faces charges of official misconduct and violating open government laws that now have been referred to the San Jose City Attorney.